Meidi Cao v. Alberto Gonzales ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3356
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Meidi Cao, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals
Alberto Gonzales, United States *
Attorney General, * [UNPUBLISHED]
*
Respondent. *
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Submitted: February 16, 2007
Filed: February 23, 2007
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Before WOLLMAN, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Petitioner, Meidi Cao, seeks review of the decision of the Board of Immigration
Appeals (BIA) that affirmed the Immigration Judge’s (IJ) denial of petitioner’s
applications for asylum, withholding of removal, protection under the Convention
Against Torture, and voluntary departure. Our jurisdiction arises under 8 U.S.C. §
1252(a)(1) (2000). The petition for review was timely filed and venue properly lies
in our court.
Petitioner, who was born on May 17, 1968, in Fujian Province, is a citizen of
China. Using a false Korean passport, he illegally entered the United States on or
about March 28, 2001. Upon being charged by the former Immigration and
Naturalization Service as removable under section 212(a)(6)(A)(I) of the Immigration
and Nationality Act (INA), petitioner admitted the factual allegation contained in the
Notice to Appear and conceded removability.
Petitioner based his claim for relief upon his allegation that subsequent to her
1991 marriage to petitioner, petitioner’s wife was twice forced to undergo abortions,
the first in 1997 and the second in 2000. Petitioner submitted by way of corroboration
Chinese abortion certificates from the local family planning office. The IJ questioned
the authenticity of these certificates, noting that the 1998 State Department Profile of
Asylum Claims and Country Conditions regarding China states that United States
Embassy and Consulates General are unaware of any so-called “abortion certificates”
and that the only official document that might resemble an abortion certificate is one
issued by a hospital at the patient’s request following a voluntary abortion. The
Profile notes that asylum documentation, especially from Fujian Province, is subject
to widespread fabrication and fraud.
Following a continuance in the proceedings, petitioner submitted hospital
documents mailed to him by his wife stating that the abortions were performed at the
hospitals and not at the family planning office. The IJ questioned the validity of these
documents, finding that petitioner had not satisfactorily explained why he had
submitted the original certificates or why the second certificates were more reliable
than the first.
The IJ also questioned petitioner’s testimony and evidence relating to his claim
that his wife had become pregnant following her 1995 sterilization. The IJ found that
petitioner had not presented sufficient evidence to establish that he faces a reasonable
possibility of persecution simply because he and his wife have two children, given the
fact that the Country Reports on China show a change in policy and conditions in that
country. The IJ found that the fact that petitioner’s wife may have undergone
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voluntary abortions did not establish a claim for asylum based upon coercive family
planning policies in China.
Finding that the petitioner had failed to establish a claim for asylum, the IJ
concluded that petitioner perforce failed to satisfy the higher standard of proof
necessary to establish a claim for withholding of removal under section 241(b)(3) of
the INA. The IJ also denied petitioner’s request for voluntary departure and ordered
him removed to China.
Because the BIA affirmed the IJ’s decision without opinion, we review the IJ’s
decision as that of the BIA. Prokopenko v. Ashcroft, 372 F.3d 941, 944 (8th Cir.
2004). We review the BIA’s denial of an application of asylum under the deferential
substantial evidence standard of review. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481
(1992), and we may reverse only if the evidence not only supports but compels the
conclusion that the petitioner advocates. Id. at n.1. As provided by the INA,
“[A]dministrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
We conclude that the IJ’s findings and credibility determinations find support
in the record and thus should be affirmed. Without recounting that evidence in greater
detail than that set forth above, suffice it to say that it lacks credence, as illustrated
by petitioner’s presentation of highly questionable documents and his credulity-
straining testimony regarding his wife’s post-sterilization pregnancy and his alleged
seven-day detention pending his wife’s surrender for an involuntary abortion. Small
wonder, then, that the IJ summarized his reaction to petitioner’s testimony by saying,
“This Court does not believe that [petitioner] has testified candidly or truthfully
concerning the incidents that allegedly occurred in China.”
We agree with the government that because petitioner did not file an appeal
with the BIA from the IJ’s adverse decisions on his withholding and Convention
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Against Torture claims, he has failed to exhaust his remedies on those claims and may
not raise them by way of petition for review. See, e.g., Ateka v. Ashcroft, 384 F.3d
954, 957 (8th Cir. 2004).
The petition is denied.
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